Ex-U.S. Attorney: Nassar plea may land max sentence

Though the plea deal Larry Nassar signed Tuesday won’t include charges related to two separate alleged incidents of sexual exploitation, a former U.S. Attorney said the plea deal could maximize Nassar’s sentence.

Barbara McQuade, a former U.S. Attorney for the Eastern District of Michigan and currently a law professor at the University of Michigan, said the plea agreement could be a way to ensure a high sentence against the ex-MSU doctor and “minimize re-victimizing” the alleged victims.

During Nassar’s plea hearing in federal court Tuesday, Nassar admitted to the receipt and possession of “more than 37,000” images of child pornography as well as the destruction of files after he paid a computer store to have the data and operating system from his work laptop erased.

In return for the plea, federal prosecutors agreed not to charge Nassar with alleged sexual exploitation of two children in a swimming pool at Nassar’s home in 2015 or with alleged sexual misconduct involving two other children overseas between 2006 and 2013.

Kaye Hooker, a spokesperson for the U.S. Attorney’s office in the Western District of Michigan, told The State News the four individuals involved in these charges were in favor of the plea agreement.

“One possible explanation for this course is to say, ‘Well, here’s a way to get a sentence of potentially 60 years in prison. He will agree to plead guilty so we do not have to have these victims relive the worst moments of their lives by describing it in open court in public. We minimize any risk we might encounter of losing before a jury, which is always a risky proposition,’” McQuade said.

Of the charges prosecutors agreed to drop, McQuade said the alleged incident that occurred overseas would be especially difficult to prove.

“Typically, you have to prove the venue occurred in the district that it is charged, so that one—it’s possible there are venue problems with charging the one where part of the crime occurred overseas,” McQuaid said.

Attorney Stephen R. Drew, who represents 65 of Nassar's alleged victims, said one of the concerns he and his clients have is that the federal court will not be prosecuting allegations that Nassar produced the child pornography himself or the allegations of crossing of state and federal lines to commit acts of child exploitation.

“The more serious charges that carry the more severe penalties, which I believe are 10 years to life, are the production of child pornography," Drew said. "So that gets into the issue of whether he did it, whether he actually produced it. ... And also crossing state lines and even federal lines across the country to commit acts of child exploitation. And there’s not going to be (a federal) prosecution of those.”

Nassar’s sentence for the three child pornography charges will be determined by U.S. District Judge Janet T. Neff on Nov. 27. Nassar will also be required to register as a sexual offender and be forced to pay restitution to “all of the victims of his sexual exploitation, as determined by the Court at sentencing,” according to the plea deal.

Under the plea deal, prosecutors and Nassar’s defense agreed to a sentencing guideline range of 22 to 27 years in prison, though U.S. Attorneys will be able to tell Neff at the sentencing hearing of any other charges brought against Nassar, at any court level, which could persuade Neff to hand down a maximum penalty on Nassar — up to 60 years consecutively.

“At sentencing, they would be permitted to describe to the court all the facts,” McQuade said. “They’re allowed to talk about the characteristics of the offender, so anything he’s ever done is fair game to ask the court to go above that guideline range, up to the statutory (maximum) of 60 years."

According to federal law, Neff can take into consideration the uncharged counts being brought against Nassar when she determines an appropriate sentence.

“The federal sentencing guidelines provide for a substantially increased sentence when a defendant has engaged in a pattern of activity involving the sexual abuse or exploitation of minors,” according to the U.S. Attorney’s office.

Drew said the state-level courts will have to decide whether the guilty plea and the sentence may come into play in his case.

“In our civil case, the Court would have to decide if that’s relevant to our claims of the alleged sexual abuse by using his authority to do things that are clearly inappropriate for alleged sexual gratification," Drew said. "So the Court would have to decide if that’s relevant. I can say I think that’s relevant.”

Attorneys Shannon Smith and Matt Newburg, who represent Nassar in both the federal and state courts, told reporters Tuesday Nassar’s position on the state cases is not expected to change.

Though Nassar could end up behind federal bars for what would likely be the rest of his life, Nassar will still have to stand trial in Ingham and Eaton Counties, where 119 women have alleged sexual abuse against Nassar.

According to McQuade, judges in circuit court can seek maximum penalties in other cases against Nassar, if they don’t believe Neff came down hard enough in her sentencing.

“It’s hard to say how (Judge Neff’s decision) may impact things,” McQuade said. “There’s this concept called comity where just because the federal government was able to reach a just result, it doesn’t mean the state’s interest in the case has been satisfied. It’s hard to predict how that might play out."